On behalf of the defendant-appellant,
the cause was submitted on the brief of Thomas C. Simon of Bucher Law Group, LLC, Delafield.

Respondent

ATTORNEYS:

On behalf of the plaintiff-respondent,
the cause was submitted on the brief of Sarah L. Burgundy, assistant attorney general, and J.B.
Van Hollen, attorney general.

2013 WI App 140

COURT OF APPEALS

DECISION

DATED AND FILED

November 13, 2013

Diane M. Fremgen

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP837-CR

Cir. Ct. No.2009CF1348

STATE OF WISCONSIN

IN COURT OF
APPEALS

State of Wisconsin,

Plaintiff-Respondent,

v.

Jack E. Johnson,

Defendant-Appellant.

APPEAL
from a judgment of the circuit court for Waukesha County:james
r. kieffer, Judge.Affirmed.

Before Neubauer, P.J., Reilly and Gundrum, JJ.

¶1REILLY, J. Jack E. Johnson appeals his
conviction for being party to the crime of first-degree intentional homicide on
the ground that the warrantless search of his Mexican residence mandated the
suppression of evidence obtained in the search.We affirm as the “good faith” exception to the exclusionary rule
applies.American law enforcement
officials were objectively reasonable in seeking out and relying on Mexican law
enforcement’s direction as to the requirements of Mexican law and conducting
the search in accordance with those directions.

BACKGROUND

¶2Johnson was charged with first-degree intentional homicide as
a party to a crime after an investigation connected him to the ex-boyfriend and
the suspected killer of a woman in Oconomowoc, Wisconsin.As part of a subsequent investigation,
Waukesha county law enforcement contacted Federal Bureau of Investigations
Special Agent Michael Eckel regarding a search of Johnson’s rented residence in
Rosarito, Mexico.Eckel was the United
States liaison between Mexican and American law enforcement authorities.

¶3Eckel called his counterpart liaison in Mexico and told the
Mexican liaison that United States law enforcement authorities wanted to search
Johnson’s residence and needed to make sure that the search was lawfully
conducted so that the resulting evidence could be used in an American
court.The liaison told Eckel that,
according to the attorney general for Baja California, Mexico, where Johnson’s
residence was located, a warrantless search would be legal as long as Johnson’s
landlord consented.

¶4Mexican and American
authorities searched Johnson’s residence after Johnson’s landlord consented to
the search.Wisconsin authorities made a
list of items that they wished to take from the home, including a computer that
they suspected Johnson used in carrying out the crime.The list was approved by Mexican law
enforcement, and Waukesha county law enforcement thereafter received a search
warrant from a Waukesha county judge to access the contents of the
computer.

¶5Johnson filed a motion to suppress the evidence resulting
from the search of his residence, arguing that the warrantless search was
illegal under Mexican law and violated his Fourth Amendment rights.The circuit court denied Johnson’s motion,
finding that the search of Johnson’s residence was legal under Mexican
law.The court also found that even if
the search did not comply with Mexican law, the evidence obtained in the search
was admissible as United States authorities reasonably relied on the advice of
Mexican authorities as to what constitutes a legal search.Johnson was subsequently convicted following
a jury trial.Johnson appeals.[1]

STANDARD OF REVIEW

¶6Whether a search violates the constitutional rights of a
defendant and triggers the exclusionary rule, requiring the suppression of
evidence obtained as a result of the unconstitutional search, is a question of
constitutional fact.State
v. Dearborn, 2010 WI 84, ¶¶13-16, 327 Wis. 2d 252, 786 N.W.2d 97.Accordingly, a circuit court’s findings of
fact will be upheld unless clearly erroneous.State v. Martin, 2012 WI 96, ¶28, 343 Wis. 2d 278, 816 N.W.2d
270.We review de novo the application
of constitutional principles to those facts.Id.

DISCUSSION

¶7The Fourth Amendment’s prohibition against unreasonable
searches or seizures, U.S. Const.
amend. IV, is implicated in certain situations when foreign officials conduct
searches targeting American citizens in foreign countries, United States v. Peterson,
812 F.2d 486, 490 (9th Cir. 1987).In
such cases, federal precedent instructs that a search of a foreign residence is
reasonable—and therefore constitutional—if it complies with foreign law.Id. at 491.Federal courts have also recognized a “good
faith” exception to the exclusionary rule when United States officials
reasonably rely on foreign interpretations of the legality of a search as “the
exclusionary rule does not function as a deterrent in cases in which the law
enforcement officers acted on a reasonable belief that their conduct was
legal.”Id. at 492.

¶8In this case, the parties do not dispute that the Fourth
Amendment applies to the search of Johnson’s Mexican residence.The only questions are whether the search
complied with Mexican law and, if not, whether the good faith exception
applies.

Mexican Law on
Landlord Consent to Search

¶9Johnson asserts that the circuit court erred when it found
that landlord consent is a valid exception to Mexican law requiring a warrant
to search a residence.The State
apparently concedes that the record does not support a finding that Mexican law
includes an exception for landlord consent.[2]Accordingly, we assume that the search was
not legal under Mexican law and turn to an analysis of whether the fruits of
the illegal search were properly admitted.

Good Faith Exception
to the Exclusionary Rule

¶10Wisconsin has followed the lead of the United States Supreme
Court in adopting a good faith exception to the exclusionary rule, State
v. Eason, 2001 WI 98, ¶64, 245 Wis. 2d 206, 629 N.W.2d 625, stemming
from the belief that evidence should be admissible when it is “obtained in the
reasonable good-faith belief that a search or seizure was in accord with the
Fourth Amendment.”United States v. Leon,
468 U.S. 897, 909 (1984) (citation omitted). Our courts have applied the exception for an
unlawful search carried out in reliance on a facially valid search warrant, Eason,
245 Wis. 2d 206, ¶73, or on clear and settled precedent, Dearborn, 327 Wis. 2d 252,
¶46.Johnson does not argue that the good
faith exception to the exclusionary rule should not be extended to cases
involving reliance on foreign authorities conducting foreign searches.We agree that the good faith exception to the
exclusionary rule is appropriate in this context.

¶11Employment of the good faith exception in this case is in
accord with our supreme court’s instruction that application of the
exclusionary rule should be restricted to cases where the rule’s remedial
objectives will be best served, focusing on the efficacy in deterring future
Fourth Amendment violations.Id.,
¶35.The threat of suppression of
evidence by a United States court is unlikely to have any effect on the legal
opinions provided by Mexican authorities to United States law enforcement
officials or how Mexican authorities conduct a search on their soil.More importantly, it would not alter the
behavior of United States law enforcement officials who have relied on the
assurances of foreign authorities that a search is legal.See Leon, 468 U.S. at 916.Holding American law enforcement officials
“to a strict liability standard for failings of their foreign associates would
be even more incongruous than holding law enforcement officials to a strict
liability standard as to the adequacy of domestic warrants.”Peterson, 812 F.2d at 492.

¶12In applying the good faith exception to this case, we must
decide whether United States law enforcement officials involved in the search
of Johnson’s Mexican residence “acted in the objectively reasonable belief that
their conduct did not violate the Fourth Amendment.”Dearborn, 327 Wis. 2d 252, ¶33
(citation omitted).It is clear that
they did so.It was objectively
reasonable for American law enforcement to believe in the legality of a joint
Mexican-American search under the control of Mexican law enforcement that was
carried out based on contact between the FBI liaison to Mexico and his
counterpart in Mexico who contacted the head law enforcement officer in Baja California
who advised as to how a warrantless search could occur.

¶13Johnson argues that United States law enforcement officers
should have conducted a separate inquiry into Mexican law to confirm the
information received from the Baja California attorney general.Such an argument is without merit as we
presume high-ranking Mexican law enforcement personnel know their own
laws.As United States law enforcement
authorities were objectively reasonable in relying on the assurances of Mexican
authorities that the search of Johnson’s residence was legal under Mexican law,
the circuit court’s denial of Johnson’s motion to suppress evidence was
proper.

By the Court.—Judgment affirmed.

[1]
Johnson’s appellate counsel advises that Johnson passed away while in prison on
July 27, 2013.Pursuant to State
v. McDonald, 144 Wis. 2d 531, 537-39, 424 N.W.2d 411 (1988), we ordered
that Johnson’s pending appeal was not made moot by his death.

[2] The
State asserts that “it is not clear on this record whether the warrantless
search of Johnson’s residence based on his landlord’s consent was indeed legal
under Mexican and Baja California law” and does not argue on appeal that
landlord consent is a recognized exception to a search warrant in Mexico.We deem this to be a concession.